Inside Health

Court Backs Briton's Right to a Costly Drug

By SARAH LYALL

Published: April 13, 2006

An appeals court here declared Wednesday that a local health service had acted illegally in withholding a potentially lifesaving drug from a woman with breast cancer.

The decision, by the Court of Appeal, overturns a lower court ruling and means that the woman, Ann Marie Rogers, will now receive a full course of the drug, Herceptin, from her health service, in Swindon. The ruling has potentially wide implications for breast cancer treatment throughout the taxpayer-financed National Health Service, where the availability of medicines can depend on where people live.

''It's pretty clear that the judgment provides guidance to all N.H.S. authorities,'' Yogi Amin, a lawyer for Mrs. Rogers, said in an interview. ''For patients, it means that if a doctor properly prescribes the drug, the local health authority can't issue a blanket refusal on the grounds of cost or regulatory reasons.''

A year's treatment with Herceptin can cost tens of thousands of dollars.

Mrs. Rogers, 54, went to court when her local health service, Swindon Primary Care Trust, refused to treat her breast cancer with Herceptin even after her doctor had prescribed it. The drug, made by Roche, is licensed for use in late-stage breast cancer, but some studies have shown that it is effective in treating HER2 early-stage breast cancer, the kind Mrs. Rogers has.

Last fall, in response to a case in which another woman threatened to sue for access to Herceptin, the health secretary, Patricia Hewitt, praised the drug's potential for treating early-stage breast cancer. The Health Department then ordered local health services not to withhold it solely on the grounds of cost.

The drug is currently being appraised by a government-appointed board that sets guidelines for which drugs should be used, and for which illnesses, in the health system. Drug manufacturers defend the high prices of Herceptin and other drugs not only on the basis of research costs, but also because of the social benefit.

The Swindon health service had declared that it would pay for Herceptin in early-stage breast cancer only in ''exceptional circumstances.'' But Mrs. Rogers's doctor said her case was no different from those of ''the 20 or so other residents in the Swindon area in the same position,'' and urged that all get the drug.

Arguing that ''difficult choices'' have to be made in the treatment of 200,000 residents, the health service turned down the doctor.

Refused treatment, Mrs. Rogers decided to pay for private care. But Herceptin costs $36,000 to $47,000 a year, and she was able to borrow only about $8,700. After that ran out, she stopped taking the drug, but resumed when a lower court ruled that the health service had to pay while her case was pending.

After the ruling, by a unanimous three-judge panel, an elated Mrs. Rogers said she had gone to court on behalf of ''all women battling this dreadful disease.''

She added, in a reference to the so-called postcode lottery, in which treatments are available in some postal zones but not others, ''I believe everyone prescribed this treatment by their doctor should be given the same health care wherever they live.''

Jan Stubbings, chief executive of the Swindon health service, said in a statement that the service would ''revisit our policy, taking into consideration the points made by the court.'' It will pay for Mrs. Rogers's treatment and also her legal costs, bringing its total legal bill for the case to about $520,000, a spokeswoman said.

The spokeswoman, Kirsty Brain, said the service did not know yet whether it would also provide Herceptin to other patients. But the language of the ruling seems to imply that it is illegal to provide the drug to some clinically eligible patients and not to others.

The ruling said there was ''no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical circumstances any more than on the basis of personal, let alone social, circumstances.''

It went on, referring to the Swindon health service, ''Once the Primary Care Trust decided, as it did, that it would fund Herceptin for some patients and that the cost was irrelevant, the only reasonable approach was to focus on the patient's clinical needs and fund patients within the eligible group who were properly prescribed Herceptin by their physician.''

Meanwhile, Gill Morgan, chief executive of the N.H.S. Confederation, which represents organizations within the health care system, cautioned that the ruling had ''broader ramifications'' for the ability of local health services to make their own judgments.

''Primary care trusts have a duty to spend taxpayers' money in the most effective way possible,'' Dr. Morgan said in a statement. ''Every pound spent on one expensive drug or treatment is potentially at the expense of other patients. These decisions are extremely difficult and best taken as close to the patient as possible.''

Photo: Ann Marie Rogers yesterday at the Court of Appeal, which backed her suit for a cancer drug. (Photo by Peter Macdiarmid/Getty Images)